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committing misdemeanor in officer’s presence can be contexual


In 2002, a homeowner outside of Starkville awoke to a commotion on the road in front of his house. The homeowner looked out his window and saw that his mailbox had been knocked over. The homeowner also saw a vehicle driving very slowly down the highway. The homeowner went outside to investigate and discovered the vehicle stopped several hundred feet down the road. The vehicle was parked partially on the roadway, and the driver appeared to be asleep inside.

Deputy Davis of the Oktibbeha County Sheriff’s Department arrived at the scene and observed the damaged mailbox and the parked vehicle. Davis spoke with the homeowner and then went to investigate the vehicle. Davis noticed Chad Spencer was half dressed and apparently asleep across the front seat with his feet hanging out of the driver’s window. Davis woke Spencer and asked for his driver’s license. Davis also observed damage to the front-end and windshield of Spencer’s vehicle. Davis described Spencer as semi-incoherent.

Throughout their interaction, Deputy Davis noticed that Spencer was slow to respond to questions and that he avoided eye contact. When questioned, Spencer admitted hitting the mailbox. Suspicious of Spencer’s behavior, Davis called additional deputies to the scene to assess the situation and to give a second opinion. A field intoxilyzer test was conducted on Spencer to determine whether he was intoxicated. The test indicated no alcohol was present in Spencer’s system.

During the questioning, Spencer refused Davis’s request to search his vehicle. The deputies ordered Spencer to exit his vehicle and arrested him for careless driving. Deputies then discovered a pocket knife on Spencer’s person when he was searched during his arrest. Spencer gave Deputy Gitchell permission to take the knife from him and to place the knife in Spencer’s vehicle. Davis then took Spencer to the Oktibbeha County Jail.

Meanwhile, Deputy Gitchell had gone to Spencer’s vehicle to secure the knife inside. When he opened the vehicle door, Gitchell observed a white, powdery substance on the floor of the driver’s side of the vehicle. Gitchell discovered two handguns, several cellular phones, and a mint container with eight multi-colored pills inside. Gitchell continued to search for additional contraband and found a container with what he believed to be the same white, powdery substance from the vehicle floor.

Spencer was convicted of possession of ecstasy and sentenced to six years. On appeal, he argued the officer did not see him driving, the search of the truck was illegal, and he was not in constructive possession. MCOA affirmed.


A. Careless driving

Spencer asserts that according to Mississippi Code Annotated Section 99-3-7 (Rev.2000), his arrest was unlawful because he was arrested for the misdemeanor charge of careless driving, and in order for an arrest based on a misdemeanor to be lawful, the offense must be committed in the arresting officer’s presence.

In this case, the arresting officer responded to the scene and personally observed the effects of the misdemeanor crime. The arresting officer gathered eyewitness information from the scene, and, most significantly, heard a confession from the suspect to further support the arrest. The Supreme Court has made it clear that the presence requirement is contextual and may be satisfied under specific circumstances even though the arresting officer did not physically see the misdemeanor criminal act.

B. Search of truck

The U.S. Supreme Court in California v Acevedo, 500 U.S. 565 (1991), held that under the automobile exception police may conduct a warrantless search of an automobile and any containers therein if they have probable cause to believe that it contains contraband or evidence of a crime.

Spencer was lawfully arrested for careless driving. Upon his arrest, Spencer consented to allow Deputy Gitchell to place a knife found on his person in the truck. While placing this knife in the truck, the deputy observed, in plain view, a white, powdery substance. Although the deputy later determined that the powdery substance was not methamphetamine, his experience with law enforcement agencies led him to believe that the powder was a controlled substance.

The deputy also testified that Spencer’s behavior was consistent with someone who had been using methamphetamine. Although Gitchell was unsure whether the pills in the container were methamphetamine, Davis knew that, based on his experience, those types of containers were commonly used to hold controlled substances.

Regardless of the ultimate determination of the powdery substance, the deputy was well within the law in continuing to search the remainder of the vehicle for contraband upon finding the suspicious substance on the driver’s side floor of the truck.

C. Constructive possession

In Curry v. State, 249 So.2d 414 (Miss.1971), MSC stated that two elements must be present to demonstrate constructive possession: (1) that the defendant was aware of the presence and the character of the contraband in question, and (2) the defendant was intentionally in possession of it. Although proximity is an essential element of constructive possession, it is not adequate by itself, absent other incriminating circumstances, to prove possession.

However, MSC also stated that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable.

In Buggs, Buggs owned a house wherein cocaine and drug paraphernalia were found. Buggs owned the home, but presented evidence to overcome the presumption of constructive possession by showing that three other people also occupied his home. Subsequently, the State then produced additional incriminating evidence in order to prove that Buggs was in fact in possession and had control over the cocaine.

In Fuente, Fuente was the passenger in a car driven by another man when they were pulled over by the police. The driver indicated that Fuente owned the car and marijuana was found in the car. As the owner of the car, Fuente was presumed to have constructive possession of the marijuana; however, Fuente testified that he had loaned his car to the driver the day before they were arrested, giving the driver the opportunity to stash the marijuana without Fuente’s knowledge. We stated, thus, the car was not in the exclusive control and possession of Fuente and additional incriminating facts must connect Fuente with the contraband.

In Fultz v. State, 573 So.2d 689 (Miss.1990), the car in question was owned by the defendant’s sister and he denied any knowledge of the drugs found inside the car. MSC ruled that the State failed to prove any additional incriminating circumstances to justify a finding of constructive possession.

In Ferrell v. State, 649 So.2d 831 (Miss.1995), MSC found that as Ferrell was not the owner of the car, the State was then required to show additional incriminating facts to connect Ferrell with the contraband, which the State failed to do.

In this case, Spencer was the only occupant in the truck at the time of the arrest. Nowhere in the record is it explicitly stated that Spencer owned the car; however, nowhere in the record does Spencer offer any evidence that he did not own the car. Spencer neither testified at trial nor produced witnesses in order to rebut the presumption that he was driving the truck and that he was found to have constructive possession over the methamphetamine. Thus, we find this issue to be without merit.